1. “Unjust Bait and Switch?”
There are countless articles written about the military Feres Doctrine. However, none were written to inform the veteran or soldier to brace for a total financial crisis. In 2009, I was witnessing the California National Guards largest financial disaster in history. There wasn’t a single article, report or guide to understanding the Feres doctrines financial rationale or system. Initially, the National Guard Dual Status Technician starts the complaint process under the 1964 Civil Rights Act (the bait), but during the legal process, the Title VII claim is replaced with the 1950’s military Feres doctrine (the switch).
An “Unjust Bait and Switch”, is a tactic or procedure used by the military departments in U.S. federal courts to dismiss Title VII claims without a review and compensation. The U.S. federal courts allows the “Unjust Bait and Switch” because it refers to the availability of assured compensation, stating that because injured servicepersons may seek recovery under the Veterans‘ Benefits Act, a remedy under Title VII and FTCA is unnecessary. I haven’t received a cent of the compensation the United States Court of Appeals for the Ninth Circuit, stated was available because of its bar to my Title VII disparate impact (1997 – 2009) claim.
2. Undocumented Disparate Impact from 1997 to 2009
A disparate impact case relies on statistics, data, calculations, and in most cases require help from a legal expert. To get information in a disparate impact case in the first place, you typically need an attorney who knows how to use the discovery process to require a federal employer like the California military departments to hand over the information and documents you need to prove your case. I was able to retrieve, in a few days, the digital evidence I needed to prove my disparate impact case against the California National Guards. However, it was hard to convince the district court judge to acknowledge and settle the damages caused by the U.S. OPM and DOD appraisal system.
You see, there was a time when the U.S. EEOC and military departments weren’t reviewing and reconciling Title VII claims on appeal at the U.S. Ninth Circuit. It was during the California National Guards largest financial disaster. I know because I was in federal court challenging the U.S. OPM and DOD appraisal policy. It was a time period when California National Guard officials prevented soldiers and veterans from accessing the legal system. So, in anticipation of a fight in the courtroom, I made the decision to preserve a photographic view of the California military departments performance and pay regulations. For African Americans and other soldiers who were adversely impacted by Guards policy during its largest financial calamity.
The Office of Personnel Management stated to the U.S. Department of Defense in memorandum dated June 1996, “Please send us for approval any future changes that would impact legal or regulatory requirements as they apply to the appraisal system“. The U.S. Department of Defense NEVER informed the U.S. Office of Personnel Management about the 12+ year legal disparate impact challenge to its appraisal system. Instead it made administrative corrections that left a class or group of military soldiers and veterans without a remedy during the California National Guards largest financial disaster.